John Herbert McCluskey, Life peer, former Solicitor-General and judge. Born: 12 June 1929 in Glasgow. Died: 20 July 2017 in Edinburgh, aged 88.
As one of Scotland’s longest-serving judges, his breadth of experience on the bench covered the full panoply of criminal behaviour. But it was his modest upbringing and utterly down-to-earth outlook that allowed John McCluskey to truly understand the vast sweep of humanity that came before him.
Faced with an errant pop star, hardened crime boss, rapist, murderer or child molester, John McCluskey administered the law with a deftness, compassion and principled stance that was the hallmark of a legal colossus who was also a man of the people.
Unlike some he never needed to enquire who The Beatles were, or ponder if Gazza was an opera. He had represented Paul McCartney and was a dedicated football fan. And, though always objective, he did not remain untouched by the wasted lives of some of those convicted in his court, famously struggling to contain his emotions when sentencing a teenage girl to be detained without limit of time – a juvenile life sentence – for a murder which he believed she should never have been convicted of. She was later cleared.
Born John Herbert McCluskey, the son of a solicitor and grandson of a president of the National Union of Scottish Mineworkers, he attended St Bede’s Grammar School in Manchester, where he lived for a time, and Edinburgh’s Holy Cross Academy, but did not consider he had had a particularly impressive education. By contrast, he said he never ceased to be educated by his career whether at the bar or on the bench.
It began with studies at Edinburgh University where he was a Vans Dunlop scholar and Muirhead Prize winner, graduating with MA and LLB degrees in the early 1950s.
National service then intervened, when he was a pilot officer in the RAF and awarded the Sword of Honour at RAF Spitalgate, before devilling for Lord Dunpark for a year. By 1955 had been admitted to the Faculty of Advocates.
He was standing junior counsel to Scotland’s Ministry of Power in 1963 and the following year was appointed to the Crown Office as an advocate depute, becoming Queen’s Counsel three years later and working as a prosecutor until 1971.
Then in 1973 he represented the Paul McCartney, who had been charged with a number of offences, including growing cannabis on his Machrihanish farm. The pop star arrived in a private plane, met by three Rolls Royces and a Jaguar – the QC, accused and entourage all squeezing into the latter as the other cars provided a decoy for the media.
McCluskey succeeded in getting all but one charge dropped and McCartney pleaded guilty to cultivating cannabis. After the QC argued that his client had a genuine interest in horticulture, the multi-millionaire was fined £30. Mischievously the instructing solicitor suggested that McCluskey ask for time to pay. “So I did, and the place erupted,” he later recalled, “it was the coup de theatre to the day.”
Outside Campbeltown Sheriff Court, amid much hilarity, the star’s wife, Linda McCartney, snatched and proceeded to sport McCluskey’s bowler hat.
But, for all the light-hearted amusement then, in subsequent years he witnessed the rising death toll from drug abuse and the huge upsurge in addiction and drug-related crime. The country’s drugs policy was not working, he said, and he believed that by offering heroin to addicts in a medically-controlled setting the criminal market could be eradicated – a controversial view but one based on evidence before him. He was also open-minded about the decriminalisation of cannabis. Following the McCartney case, he became Sheriff Principal of Dumfries and Galloway for a year before being appointed Solicitor-General for Scotland in 1974 by Harold Wilson’s Labour government.
Two years later, McCluskey, who had previously attempted on a number of occasions to secure a Labour seat himself, was made a life peer, becoming Baron McCluskey of Churchill, and Scottish legal affairs spokesman. He also worked on the original Scotland Bill of the 1970s with his friend and tennis partner, the late John Smith, and continued to play an active part in devolution legislation.
As a Senator of the College of Justice in Scotland, between 1984 and 2000 he presided over 300 cases, was an editor on Butterworth’s Scottish Criminal Law and Practice series, and wrote the book Law, Justice and Democracy which followed his 1986 series of BBC Reith Lectures.
Among his high-profile cases was, what was then, Scotland’s longest and most expensive murder trial, the case of Paul Ferris, accused of killing the son of crime boss Arthur Thompson.
McCluskey was said to have been warned that his home would be firebombed if there was a guilty verdict. As it turned out, a jury acquitted Ferris, who also faced a variety of other charges, on all of them. The hearing was estimated to have cost £4million.
Some years earlier, McCluskey had taken the unprecedented step of asking the victim of an attempted murder and assault with intent to rape to give her views on sentencing her attacker. He said he had not known how to deal with the perpetrator but his request to the victim was dismissed by the Appeal Court.
He also dealt with the notorious John Cronin, who dressed as a priest to sexually attack a Tory party volunteer in her Edinburgh home. Describing him as “Walter Mitty gone mad”, the judge handed down a life sentence. It was later slashed to six years and Cronin went on to reoffend.
McCluskey also took on a variety of roles beyond his work on the bench: he served for almost a decade as chairman of the Scottish Association for Mental Health; was independent chairman of the Scottish Football League compensation tribunal and of the SFA appeals tribunal and chairman of the John Smith Memorial Trust.
On retiral, he was Scotland’s longest-serving judge but continued to serve the legal and wider community. He chaired Age Concern (Scotland), the Scottish Government’s panel reviewing the UK Supreme Court’s jurisdiction over Scottish Human Rights matters and the Scottish Government’s expert group on the Leveson Report’s recommendations on press regulation.
He was also an outspoken columnist for The Scotsman, criticising the Scottish Government’s plans to abolish corroboration, the need for evidence in criminal cases to come from at least two sources.
Describing him as a man of immense stature within the legal profession, Graham Matthew, president of the Law Society of Scotland said he conducted himself without fear or favour: “He was a knowledgeable, highly capable and extremely dedicated individual who played a central role in the administration of our justice system… his role as a member of the House of Lords, whether as a Law Officer or as a member of the Cross Benches, ensured that he was able to contribute to the making of the law as well as its interpretation.”
McCluskey’s contribution was recognised with a lifetime achievement award at this year’s Scottish Legal Awards, when he gave a speech laced with his characteristic humour, greeted by a standing ovation.
A private family man, who listed his recreations as tennis and piano, he was predeceased by his wife Ruth and is survived by their two sons and daughter and extended family.